Asians divided on affirmative action

Legal challenge to policy of University of Michigan highlights differing views

March 30, 2003|By David G. Savage | David G. Savage,SPECIAL TO THE SUN

WASHINGTON - Asian-American lawyers have taken a strong stand on university affirmative action in the case to be heard by the Supreme Court this week - and on opposite sides of the issue.

Based in Northern California, the Asian American Legal Foundation agrees with the white plaintiffs and urges the court to end race-based admissions policies.

"The Constitution protects individuals, and individuals should not be judged on their race," says Alan Tse, a San Francisco lawyer.

But National Asian Pacific American Legal Consortium, a coalition of 25 Asian civil rights groups, sides with the University of Michigan and urges the court to preserve affirmative action.

"This is about fairness and equal opportunity. Asian-Americans benefit from diversity. They are not hurt by it," says Julie Su, a lawyer for the Asian Pacific American Legal Center in Los Angeles.

The division of opinion reflects in part the unique history and status of Asian-Americans. They are a minority group that has suffered from racism and blatant discrimination. These days, however, some critics of affirmative action say Asian-American students may be put at a disadvantage if universities give a preference to other minority applicants who are black or Hispanic.

"My sense is that most Asians are supportive of affirmative action generally, especially in employment and business. But the situation is a bit muddier for higher education," said Bill Lann Lee, a San Francisco attorney who led the Justice Department's civil rights division in the Clinton administration.

While most civil rights law focused on discrimination against blacks, the Supreme Court's earliest civil rights rulings dealt just as often with exclusionary laws against the Chinese in California.

The Constitution was amended after the Civil War to stop the Southern states from mistreating the newly freed slaves and to require the "equal protection of the laws." This amendment, passed with high hopes, was steadily weakened by the Supreme Court and did little to help blacks.

But federal judges in California - and the Supreme Court itself - invoked the new equality standard in the 1880s to strike down laws that excluded Chinese people from government jobs, from fishing in state waters and from operating laundries in San Francisco.

But the court's record regarding Asians is spotty too. When legal scholars note the Supreme Court's worst equal-protection rulings of the 20th century, they often point to Korematsu vs. U.S., the 1944 decision that upheld the World War II internment of Japanese-Americans.

In the 1970s, when the Supreme Court first took up the issue of college affirmative action, Asian-American lawyers strongly supported admissions policies that gave an advantage to minority students. Then, Asian students qualified for this preference.

Allan Bakke, a rejected white applicant, had sued the University of California, Davis Medical School for discrimination. In response, the university conceded that it set aside 16 of its 100 slots for members of a "minority group," which it defined as "Blacks," "Chicanos," "Asians" and "American Indians."

In 1978, the court struck down this "quota" as unconstitutional, but also said that a university may consider a student's race to create diversity in its entering class.

By the early 1980s, the soaring admission rates for Asians-Americans prompted university officials to drop them from minority category.

"These programs ended when they were no longer needed. And there was no longer a need for Asians to be included," said Lee, the former civil rights chief.

But the Asian critics of affirmative action say they fear a Supreme Court ruling that would allow colleges and universities to put ceilings on the number of Asian-American students.

Their brief to the Supreme Court describes diversity rules in the San Francisco public schools that limited Chinese-Americans to 45 percent of the school's enrollment. These rules also limited the number of Chinese students who gained admission to the city's elite Lowell High School.

When some Chinese-American students were turned away from their neighborhood elementary schools, parents sued in federal court, and the school district agreed to abandon the policy.

"We fought the San Francisco schools for five years over this, and the only protection we had was the constitutional principle against race-based laws," Tse said.

If the Supreme Court says the University of Michigan is entitled to raise or lower the number of minority students, the ruling could allow public schools to do the same, he said.

But the proponents of affirmative action stress that they are not in favor of quotas or ceilings.

"They are trying to bring up examples of strict numerical limits, but that's not what we are talking about. Affirmation action is about opportunities," said Su, the Los Angeles lawyer. "I think it's unfortunate they have tried to pit Asian-Americans against other communities of color."